Understanding Visa Overstay Forgiveness

Introduction

From October 2020 to December 2024, US Immigration and Customs Enforcement (ICE) removed  616,657 people from the US! 

The US is often described as the land of liberty and opportunity, where innovation and diversity are welcomed. In this context, it is perfectly understandable if you made the mistake of overstaying on your visa. However, this can complicate your immigration journey if you decide to become a US green card holder or Citizen. This guide explains how you can prevent being removed from the US and apply for visa overstay forgiveness. 

What is Visa Overstay Forgiveness?

When you enter the US on a non-immigrant visa, you are issued a Form I-94, Arrival/Departure Record, which provides an “admit until date”. If you stay in the US beyond this date, without getting an extension of your visa, you are deemed to have overstayed in the US. 

However, you still have the option to obtain a waiver of inadmissibility. Your success in obtaining a waiver depends on: 

1. The number of days you overstayed your visa.
2. The reason you have for overstaying your visa.

What is Unlawful Presence?

Unlawful presence is when you are present in the US after your period of stay authorized by the Department of Homeland Security (DHS) has expired. Depending on your visa type, you may either see “admit until date” or “duration of status” (D/S) provided on your I-94. 

For instance, if you came to the US on an M-1 or F-1 student visa, your stay or status duration is the duration of your program. After your program is over, you have to leave the US. Any time you spend in the US after the end of your program (or the grace period to leave the country) will amount to unlawful presence. 

What are the Exceptions to Unlawful Presence?

The US provides some exemptions to the rule of unlawful presence. If you fall in any of the following cases, your stay in the US after your visa expires may not amount to unlawful presence:

• Age: You are a child under the age of 18
• Asylum: You are an asylee or an asylum applicant 
• Battered Spouse or Dependents: You are a spouse or a dependent who has been subject to battery and extreme cruelty and has submitted a claim under the Violence Against Women Act (VAWA) and has demonstrated a link between your VAWA claim and your unlawful presence.
• Human Trafficking: You are a victim of severe trafficking and have demonstrated that this is one of the central reasons for your unlawful presence in the US.   
• Family Unity Beneficiaries: You are the beneficiary of protection under the Family Unity Program, as per Section 301 of the Immigration Act of 1990. 

Although it is not an exception to the rule of unlawful presence, if you could not leave the US for any genuine reason, such as a medical emergency or travel restriction, you can mention these factors when submitting your application for visa overstay forgiveness. 

What are the Penalties for Visa Overstay?

Under Immigration and Nationality Act (INA) Section 212(a)(9)(B)(i), if you overstay on your visa and do not fall in any of the exceptions, the USCIS may find you inadmissible for re-entry to the US for the following period(s):

• 3-year Inadmissibility: If you have an unlawful presence of more than 180 days during a single stay, and you left the US before the removal proceedings could start, you may not be able to re-enter the US for 3 years after leaving the US. 
• 10-year Inadmissibility: If you have an unlawful presence of one year or more during a single stay, you may not be able to re-enter the US for 10 years after leaving or being removed from the US.
• Permanent Inadmissibility: If you have an unlawful presence of more than one year, during a single or multiple visits, you may never be allowed to re-enter the US. Is there something I can do to remove my permanent inadmissibility? Yes, you can apply for a waiver of inadmissibility or file USCIS Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. 

Want to learn more about removing your inadmissibility and being admitted to the US? Consult our expert immigration attorneys today!

How Can You Apply for Visa Overstay Forgiveness?

Having an unlawful presence in the US and overstaying on your visa does not mean you cannot re-enter the US. You can apply for a visa overstay forgiveness by filing USCIS Form I-601. 

You can get a waiver depending on the immigration benefit you seek and the reason for your inadmissibility. Your application for visa overstay forgiveness is valid indefinitely, and if accepted, applies to all grounds of inadmissibility you have mentioned in your application. 

What is the Eligibility for Visa Overstay Forgiveness?

Here’s a list of visas and immigration benefits that are eligible for visa overstay forgiveness by filing Form I-601:

• Temporary Protected Status (TPS): You must prove that you need a waiver for humanitarian purposes, to assure family unity, or in the public interest.  
• Adjustment of Status under Haitian Refugee Immigration Fairness Act (HRIFA) Section 902 or Nicaraguan Adjustment and Central American Relief Act (NACARA) Section 202: If you are applying for a green card through adjustment of status under either of these sections, you do not need a waiver of the 3-year or 10-year inadmissibility bar as INA section 212(a)(9)(B) do not apply these sections of the HRIFA and NACARA. 
• VAWA self-petitioners or their children: If you fall in this category, you may be eligible to file for visa overstay forgiveness.
• Adjustment of Status T Nonimmigrant Status Applicants: If you can prove that your victimization was the central reason for your overstay, you may be directly exempt from the 3-year and 10-year bans, and you don’t need to file a waiver application. If you cannot easily prove that, you should consider filing for visa overstay forgiveness.
• Adjustment of Status Special Immigrant Juvenile Applicants: You may be eligible for visa overstay forgiveness if you prove the presence of any humanitarian purpose, public interest, or reason of family unity. 

What is the Process of Filing for Visa Overstay Forgiveness?

The process of filing for visa overstay forgiveness can sometimes get complicated; however, if you follow these steps, you can reduce the chances of delays and mistakes.

Step 1:  Filing Out Form I-601

The first step is to complete Form I-601 by writing your particulars and personal information. 

Step 2: Attaching Evidence

Based on why you are applying for visa overstay forgiveness, you have to attach documents to prove the reasons for obtaining a waiver. Remember, this is a request, and it is at the discretion of the USCIS officer to decide whether to accept your application. While there is no fixed list, typically you should attach the following documents:

• Affidavits written by friends, family, or an employer
• Evidence of family ties
• Evidence of any humanitarian reason, extreme hardship, and public interest. 

After you have done this, file the form with the USCIS and pay the required fee. 

Attending the Biometrics Interview:

The USCIS may send you a notice after you file your I-601, informing you that you must attend a biometrics interview. The USCIS may conduct a background check to check your criminal record, and ask you to provide your fingerprints, signature, and a photograph. 

When is Form I-601A Used?

You can apply for a provisional waiver of inadmissibility by filing for visa overstay forgiveness using Form I-601A, Application for Provisional Unlawful Presence Waiver. However, this form can only be used if you: 

1. Are a relative of a US citizen or LPR 
2. Are aged 17 years or more at the time of filing
3. Are physically present in the US
4. Have an immigrant visa case pending with the US Department of State. 

If the USCIS approves your I-601A, you can resolve your removal proceedings (if you are being removed from the US) and leave the US to attend your immigrant visa interview. 

What is the Cost of Applying for Visa Overstay Forgiveness?

The cost of applying for visa overstay forgiveness for your unlawful presence depends on the form you use. If you file for visa overstay forgiveness using Form I-601 or I-212, you must pay $1050 as the filing fee. If you use Form I-601A, the filing fee is $795.

Conclusion

Overstaying on your visa may complicate your immigration process, but it doesn’t mean all doors are closed. By applying for visa overstay forgiveness, you can prevent your previous visa overstay from affecting your eligibility to apply for a green card. This detailed guide helps you understand the process, eligibility, and costs of visa overstay forgiveness.

How Can FileRight Help You?

FileRight’s expert immigration attorneys can help you decide whether to apply for visa overstay forgiveness. With the expert guidance of our lawyers, you can file an I-601 with ease, minimizing the chances of errors and omissions. 

FileRight’s personalised filing instructions and lawyer-reviewed application process guide you in attaching and submitting all relevant documentary evidence for I-601. Additionally, with our post-filing support services, you can get the services of our seasoned lawyer in dealing with any notices of Requests for Evidence (RFE).

Consult FileRight’s experienced team today to file your Form I-601 and apply for visa overstay forgiveness!